Judgment

K. JAGANNATHA SHETTY, J.:- The question of law which is concerned in this  appeal is whether in the circumstances of the case, the appellant ("Bank") was required to act as agent of the respondent or as bailee in respect of goods entrusted for delivery to the respondent against payment.

2. In 1945 the respondent was carrying on the business of wholesale and retail dealership in textile yarn and cloth at Agartala and in the .course of that business he was appointed as a Government nominee to indent for and lift the quantities of cloth and yarn to Agartala from different mills situated in Bengal, Bombay, Ahmedabad and other places.

3. For the purpose of that business, the respondent had maintained Current Account No. 391 with the Agartala Branch of the United Commercial Bank Limited which has since been styled as UCO Bank, the appellant in this appeal.

4. The case of the respondent-plaintiff was that there was an oral agreement with the Bank on September 2, 1950 under which the latter inter alia was to receive bills, documents and air receipts sent by or on behalf of the plaintiff from his agents or suppliers and would release and/ or take delivery of goods sent by them, as and when the goods arrive at Agartala. The Bank would hold or keep the said goods stored in its godown for and on behalf of and on account of the plaintiff for his benefit etc. It was also alleged that payment of the bills in respect of goods despatched to the Bank should be made by the plaintiff. He should be given delivery of the goods and air receipts by the Bank according to his convenience and requirement. It was further stated that under the said terms and conditions, the Banker constituted himself and acted as an express trustee and/ or agent of the plaintiff in relation to the said goods and air receipts and thus stood in fiduciary relationship with the plaintiff.

5. Complaining non-delivery of goods even after receiving payment thereof, the plaintiff brought a suit for accounts, damages, compensation and delivery of goods or their equivalent in money, valued at Rs. 2,68,198.97.

6. The Bank has denied all the allegations and asserted that it never acted as an agent, trustee or depositee of the plaintiff in respect of the goods and documents. The existence of fiduciary relationship between the parties was also denied. It was however stated that certain parties from Calcutta were supplying goods to various parties in Agartala including the plaintiff and they used to send bills with air receipts covering the goods to the Bank for presentation to the drawees and the Bank would deliver the same against payment. The Bank collected bill amounts on behalf of those parties in the usual course of business. It was further admitted that some parties from Calcutta engaged the Bank to collect the amounts of the bills drawn on the plaintiff, to clear the goods despatched by them from the Airways on their behalf, to store them in Banks godown and to allow the drawee (plaintiff) to take delivery of the goods against payment of their costs and charges including the salaries of the godown staff, handling and insurance charges etc. Those charges and costs were recovered from the plaintiff by the Bank on behalf of the parties sending the goods to the plaintiff. The Bank maintained that it had dealt with such goods of the Calcutta parties, recovered monthly charges at the instructions of the drawers and the drawee (plaintiff) and debited to the account of the plaintiff. When there was no amount available in the plaintiffs account or when the plaintiff defaulted in retiring the bills, the said charges were recovered from the drawers. The goods in the custody of the Bank on behalf of the Calcutta parties which were paid for by the plaintiff would be delivered to the plaintiff and the goods for which no payment was made by the plaintiff would be returned to the drawers of the bills.

7. The trial Court framed among others, the following three issues:

(9) Was there any agreeme